Flash Card - Constitutional Law

Question 1

The 11th Amendment prohibits a party from suing a state or state agency in federal court.

What are the exceptions to this?

Answer 1

a) The state explicitly consents to waive its 11th
Amendment protections;
b) The suit pertains to federal laws adopted under Section 5 of the 14th Amendment;
c) The suit seeks only injunctive relief against a state official for conduct in violation of the Constitution or federal law; OR
d) The suit seeks money damages from a state official.

Question 2

When does the 11th Amendment not apply?

Answer 2

a) To local governments;
b) Federal suits brought by one state against another;
OR
c) A suit by the federal government against a state.

Question 3

What issues must be resolved to determine if
congress validly abrogated state immunity (under Section 5 of the 14th amendment)?

Answer 3

1) Whether congress unequivocally expressed its
intent to abrogate the immunity; AND
2) If it did, whether they acted pursuant to a valid
grant of Constitutional authority.

Question 4

When does a party have Standing to sue?

Answer 4

It exists when the plaintiff:
1) Personally suffered an injury in fact;
2) The injury was caused by the defendant; AND
3) The injury is redressable by a court order.

Question 5

Standing

What does a plaintiff NEED to show when seeking injunctive or declaratory relief?

Answer 5

He must show that there is a concrete, imminent
threat of future injury that is neither conjectural nor speculative.

Question 6

Third-Party Standing
vs.
Organizational Standing

Answer 6

Third-party: NOT permitted, but exceptions are made when there is a close relationship between the plaintiff and 3rd party – if it would be difficult for the 3rd party to assert their rights or if the 3rd party is an organization.

Organizational: An organization has standing to sue on behalf of their members if (1) the suit is related to an issue that is germane to the organization’s purpose, (2) the members would have standing to sue, and (3) the member’s participation is not necessary.

Question 7

What does Ripeness refer to?

Answer 7

Whether a case is ready to be litigated.

A case is ripe for review when there is actual harm or an immediate threat of harm to the plaintiff.

Question 8

What does Mootness refer to?

Answer 8

To instances when the dispute has ended or was resolved before review.
A court may hear a case that has ended/resolved when:
a) The wrong alleged is capable of being repeated and escaping review;
b) The defendant voluntarily stops an offending practice but can resume it any time; OR
c) In a class action.

Question 9

Under the Commerce Clause, what may Congress regulate?

Answer 9

1) The channels of interstate commerce;
2) The people and instrumentalities that work and travel in interstate commerce; AND
3) Economic or commercial activities that have a
substantial effect on interstate commerce.

Question 10

When will federal regulations regarding intrastate activities be upheld?

Answer 10

If:
1) If there is a rational basis,
2) To conclude that the cumulative national impact of the activities;
3) Have a substantial effect ON interstate commerce.

*Aggregation CANNOT be used when the activities regulated are NOT commercial or economic in nature.

Question 11

What Taxing and Spending Powers does Congress have?

Answer 11

They have the power to tax and spend for the general welfare. These powers are interpreted BROADLY and allows Congress to attach restrictions or conditions on federal funding in order to regulate areas they would otherwise not have the power to do so.

Question 12

Spending Power
What must be satisfied when Congress places
conditions on States receiving federal funds?

Answer 12

The:
1) Spending must be for the general welfare;
2) Condition must be imposed unambiguously;
3) Condition must be related to federal interests in national projects or programs;
4) Condition cannot induce unconstitutional activities; AND
5) Condition cannot be so coercive to turn pressure into compulsion.

Question 13

What powers does the President have?

Answer 13

1) Faithfully execute the law;
2) Appoint ambassadors, public ministers, consuls, supreme/federal court judges, and other officers;
3) Appoint inferior officers (when the power is given to him by Congress);
4) Remove cabinet level appointees
5) Enter into agreements without senate approval;
6) Pardon federal crimes; AND
7) Control troops as Commander in Chief.

Question 14

When does Congress have the power to delegate
Legislative Powers?

Answer 14

They can so long as:
1) The powers are delegable under the Constitution; AND
2) Congress provides reasonably intelligible
standards to guide the delegation.

*Congress CANNOT delegate powers it does not have.

Question 15

Under the 10th Amendment, all powers not granted to the federal government are reserved to the states.

What can congress do to induce state government action?

Answer 15

They can induce state action by attaching restrictions and conditions on federal funding grants pursuant to its federal taxing and spending powers.

Question 16

What is the Negative Commerce Clause?

Answer 16

State and local governments CANNOT pass laws that:
a) Discriminate against out-of-state commerce; OR
b) Place an undue burden on interstate commerce.

*Note: If congress has passed laws on a matter, state and local laws on that same matter would be pre-empted by the federal law.

Question 17

Negative Commerce Clause:
When is a law deemed discriminatory?

Answer 17

When it is either:
a) Facially discriminatory; OR
b) The law has a discriminatory impact because it favors instate commerce over out-of-state commerce. These laws are typically unconstitutional, unless:
a. The burden on Interstate commerce is narrowly tailored to achieve a legitimate, non-protectionist state objective; OR
b. The state/local gov’t is a “market participant.”

Question 18

Negative Commerce Clause:
When is a law deemed unduly burdensome?

Answer 18

State and local laws that place an undue burden on interstate commerce are unconstitutional when:
1) The burden on interstate commerce,
2) Is clearly excessive to the putative benefits to the state and local government.

*Courts apply this balancing test on a case-by-case basis.

Question 19

Express Preemption vs. Implied Preemption

Answer 19

Express: When federal legislation specifically states that the federal law is exclusive.
Implied: Occurs either through:
a) Direct conflict with the state law;
b) Through field preemption; OR
c) When the state law substantially interferes with the objective of the federal law.

*Validly enacted federal laws will always preempt conflicting state laws.

Question 20

When will a court find “state action” for private
conduct?

Answer 20

When the conduct involves either:
a) A traditional public function – powers traditionally and exclusively reserved to the government; OR
b) When significant government involvement exists to authorize, encourage, or facilitate private conduct that is unconstitutional.

Question 21

What 3 Amendments have not been incorporated to the states through the Incorporation Doctrine?

Answer 21

1) 3rd Amendment (Freedom from quartering soldiers)
2) 5th Amendment (right to indictment by a grand jury)
3) 7th Amendment (right to jury trial in civil cases)

Question 22

What does the 13th Amendment prohibit?

Answer 22

Involuntary servitude. It applies to both government and private actors.

Question 23

Substantive Due Process

Fundamental Rights Test
vs.
Non-Fundamental Rights Test

Answer 23

Fundamental: To regulate rights, government must satisfy strict scrutiny (law is necessary to serve a compelling government interest). Rights include: right to vote, right to interstate travel, and right to privacy.

Non-Fundamental: The government may regulate activities not deemed fundamental rights so long as it meets the rational basis test (the law is rationally related to a legitimate
government interest).

Question 24

Procedural Due Process

Deprivation of Liberty vs. Deprivation of Property

Answer 24

Liberty: When the government deprives an individual of a freedom provided by the Constitution or statute.

Property: When an individual has an entitlement that is not fulfilled (i.e. welfare or security benefits).

*The Due Process Clause guarantees that no person shall be denied life, liberty, or property without due process of the law.

Question 25

Procedural Due Process

What are the three Mathews v. Eldridge factors?

Answer 25

The court balances:
1) The importance of the private interests being affected;
2) The risk of error under current procedures and the value of additional procedures; AND
3) The importance of state interests and the burdens on the government that would arise from additional safeguards.

Question 26

Equal Protection Clause

What must the government show under Strict
Scrutiny, and when will courts apply it?

Answer 26

The government must show that a classification is necessary to serve a compelling government interest. Courts will apply strict scrutiny when:
a) Classification is based on suspect class (race, origin); OR
b) When the law infringes on a fundamental right for a class of people.

*Alienage is a suspect class ONLY when a state is involved.

Question 27

Equal Protection Clause

What must the government show under Intermediate Scrutiny, and when will courts apply it?

Answer 27

The government must show that a classification is substantially related to an important government interest.

Courts will apply it when:
A classification is based on a quasi-suspect class (gender/sex, non-marital children, and most likely sexual orientation/gender identity).

Question 28

Equal Protection Clause

What classes does the Rational Basis test apply to, and what must a plaintiff show regarding the
classification?

Answer 28

This test applies to ALL other classes not covered under strict or intermediate scrutiny (age, disability, undocumented aliens, etc.).

Under this test the plaintiff must show that the
classification is not rationally related to any legitimate government interest.

*Indigent individuals are NOT a suspect class and need only meet the
rational basis test.

Question 29

Takings (5th Amendment)

Possessory (per se) takings vs. Regulatory takings

Answer 29

Possessory – When the government physically takes or occupies the property (even just a small portion).

Regulatory – Three Categories:
􀂃 Depriving Owner of All Economically Viable Use – is a per se taking
􀂃 Penn Central Taking
􀂃 Conditions on Approval of a Permit (a.k.a. a Land-Use Exaction)

Question 30

Takings (5th Amendment)

What are the factors for a Penn Central Taking?

Answer 30

To determine whether a taking occurred, courts balance the Penn Central Factors:
1) The economic interest of the regulation on the claimant;
2) The extent of the interference; AND
3) The character of the governmental action.

Question 31

Takings (5th Amendment)

When do conditions placed on the approval of
permits NOT constitute an uncompensated taking under the 5th Amendment?

Answer 31

If:
1) There is an essential nexus between the state interest and permit condition; AND
2) The government makes an individualized determination that the condition is roughly proportional to advancing the state interest.

Question 32

Use regulations MAY NOT be applied retroactively to prohibit a nonconforming use.
When will a non-conforming use lose its protection?

Answer 32

If it is:
a) Abandoned;
b) Substantially changed; OR
c) Destroyed.

*Termination of a non-conforming use can be done through amortization provisions, which require the termination of a use after a specific period of time (if reasonable it’s Constitutional).

Question 33

What factors are considered to determine if
spot zoning will be upheld?

Answer 33

1) The size of the specific area of land;
2) Whether the zoning is arbitrary or compatible
with an existing comprehensive zoning plan; AND
3) The benefits and detriments to surrounding
landowners.

Question 34

When does the Vested Rights Doctrine protect
landowners from subsequent changes in zoning?

Answer 34

When:
1) Substantial construction has begun; AND
2) Substantial expenditures have been made in reliance on a valid permit.

*Generally, if no construction has begun, they WILL NOT receive vested rights to continue.

Question 35

Under the Privileges and Immunities Clause (Art.
IV, Section 2), States CANNOT intentionally discriminate against non-residents concerning what?

Answer 35

a) Civil liberties (right to vote, travel); OR
b) Important economic activities (ability to earn a
livelihood).

*Laws will be upheld if the state is justified for the discrimination.

Question 36

When will laws that discriminate against nonresidents be upheld?

Answer 36

If the state is justified for the discrimination, then the laws will be upheld when:
1) There is a substantial reason for the difference in treatment; AND
2) The discriminatory law has a substantial relationship to that reason.

Question 37

What rights does the 1st Amendment of the U.S.
Constitution protect?

Answer 37

1) Freedom of speech and expressive activities;
2) Freedom to exercise religion;
3) Freedom of the press;
4) Freedom to peacefully assemble; AND
5) The right to petition the government for a redress of grievances.

*Congress also shall make NO law concerning the establishment of religion.

Question 38

What does the Establishment Clause prohibit?

Answer 38

The government from establishing a religion or endorsing/supporting religion.

Laws that discriminate MUST satisfy strict scrutiny.

Laws that are facially neutral (do not discriminate against a particular religion) are PROHIBITED IF historical practices & understandings of the Establishment Clause are violated.

􀀐 Coercion (to support or participate in religious activity) is a primary factor for a violation.

Question 39

What does the Free Exercise Clause prohibit?

Answer 39

The government from interfering with the exercise of religion.

Laws that interfere MUST satisfy strict scrutiny.

*Laws of general applicability that cause unintentional burdens on religion ARE constitutional, and do not offend the Free Exercise Clause.

Question 40

Free Speech:

Content-Based Restrictions
vs.
Content-Neutral Restrictions

Answer 40

Content-Based: Regulations regarding the content of protected speech (subject matter, viewpoint). Gov’t MUST satisfy strict scrutiny (narrowly tailored to achieve a compelling government interest AND it used the least restrictive means).

Content-Neutral: Gov’t may regulate the time, place, and manner of content-neutral speech if the regulation satisfies intermediate scrutiny (narrowly tailored to achieve a significant government interest AND leave open alternate channels of communication).

Question 41

Free Speech:

Public Forum
vs.
Designated Public Forum
vs.
Non-Public Forum

Answer 41

Public Forum: Traditionally available to the public for free speech.

Designated Public Forum: Not traditionally available for free speech, BUT the government chooses to make it available. Treated the same as a Public Forum.

Non-Public Forum: Public spaces that have traditionally been limited for free speech. The government may regulate speech here if the regulation is reasonable AND viewpoint neutral.

Question 42

Free Speech:

When are licensing requirements permitted?

Answer 42

If:
1) The government has an important reason for licensing;
2) Specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; AND
3) Procedural safeguards are in place.

Question 43

Unprotected Speech:

What are fighting words?

Answer 43

Words, which by their very utterance:
a) Inflict injury; OR
b) Tend to incite an immediate breach of the peace.

*The 1st Amendment DOES NOT protect fighting words or true threats.

Question 44

Unprotected Speech:

When does speech Incite Imminent Lawless Action?

Answer 44

When it:
1) Advocates the use of force or illegality;
2) It is directed to inciting or producing imminent
lawless action; AND
3) It’s likely to incite or produce such an action.

*Speech that Incites Imminent Lawless Action is NOT protected by the 1st Amendment and may be outlawed.

Question 45

Unprotected Speech:

Obscenity is NOT protected under the 1st
Amendment.

What speech/material is characterized as obscene?

Answer 45

When:
1) It appeals to the prurient interest;
2) It is patently offensive under the laws prohibiting obscenity; AND
3) It lacks any serious, artistic, literary, or scientific value based on a national standard.

Question 46

Commercial Speech:

When may the government regulate truthful, non-misleading commercial speech?

Answer 46

If the regulation:
1) Directly advances;
2) A substantial government interest; AND
3) Is no more restrictive than necessary.

*False or misleading speech is NOT protected under the 1st Amendment.

Question 47

Free Speech – Public Schools

Schools are given a greater latitude to regulate speech. When are school officials justified in the suppression of speech?

Answer 47

They must prove that the conduct would materially and substantially interfere with the operation of the school.

Question 48

Free Speech – Gov’t Employees

For a government employee’s speech to be Constitutionally protected, what is required?

Answer 48

The employee must speak:
1) As a citizen; AND
2) On a matter of public concern.

*An employee’s statements made pursuant to their official duties are NOT protected.

Question 49

Free Speech – Expressive Conduct

When may expressive conduct or symbolic speech be regulated?

Answer 49

If:
1) The government has an important purpose;
2) The purpose is independent of the suppression of speech; AND
3) The restriction is no greater than necessary to achieve that purpose.

Question 50

Free Speech – Prior Restraints

When are procedural safeguards for licensing
Permitted?

Answer 50

If:
1) The government has an important reason for licensing;
2) Specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; AND
3) Procedural safeguards are in place, assuring prompt final judicial decision when a license is denied.

Question 51

Free Speech – Prior Restraints

What is a prior restraint on speech?

Answer 51

When the government attempts to prohibit speech before it happens through a court order or licensing requirement.

*Prior restraints are generally disfavored and unconstitutional, and court orders preventing speech MUST satisfy Strict Scrutiny.

Question 52

When is a statute unduly vague or overbroad?

Answer 52

A statute is unduly vague if it does not put the public on reasonable notice as to what is prohibited.

A statute is overbroad if it regulates more speech than is Constitutionally permitted.

*A defendant CANNOT be convicted under a law that is deemed overbroad or vague.

Question 53

Freedom of the Press & Defamation:

What are the elements needed to prove actual
malice for a public and private figure?

Answer 53

For a Public Figure, the plaintiff needs to prove:
1) That the statement was false; AND
2) That the defendant spoke with either:
a. Recklessness as to the truth of the statement; OR
b. Knowledge of its falsity.

If a Private Figure, the plaintiff need only prove that the:
1) Statement is false; AND
2) Speaker was negligent.

Question 54

Freedom of the Press:

The 1st Amendment protects the press from liability when publishing what?

Answer 54

1) Truthful private facts;
2) On a matter of public concern;
3) Where such information is legally obtained; AND
4) There is no knowledge that any information was obtained illegally.

*The 1st Amend. doesn’t protect the press from liability for violating generally applicable laws.

Question 55

Freedom of Association:

When may the Government punish a person’s
membership in a group?

Answer 55

If it proves that:
1) The group is actively engaged in illegal activity or incites imminent lawless action;
2) The person has knowledge of the group’s illegal activities; AND
3) The person has specific intent of furthering those illegal activities.